Thursday, April 6, 2017


222 E. 12 REALTY v. SO, 2017 NY Slip Op 27000 - NY: Appellate Term, 1st Dept. 2017:

There was a dissent and here it is in part:

"Moreover, any alleged breach by tenant was de minimus, given that the first inspection was not an issue (and, therefore, presumably, plaintiff was in compliance with the parties's stipulation during the first six (6) months of the one (1) year probationary period), tenant cooperated with APS with the initial organization of his unit, and provided proof that he in fact remedied any clutter condition, quickly after the second inspection. Any breach was particularly de minimus, especially when weighed against landlord's eight (8) immediately hazardous violations and 16 hazardous violations placed on the building and landlord's own actions causing any alleged breach by tenant, because of its construction, which indisputably caused flooding and dust to accumulate in So's unit, and landlord's requiring the immediate removal of tenant's possessions from his long-term storage area in the basement, causing tenant to temporarily store some additional possessions in his unit just prior to the second inspection, and for which, tenant, nonetheless, received no building violations on his apartment, unlike landlord's 24 immediately hazardous/hazardous building violations.

In any event, even if it was determined that tenant breached the stipulation, as this court recently acknowledged, pursuant to RPAPL 753 (4)[7], tenant must be afforded a post-judgment opportunity to cure (see Roger Morris Apt. Corp. v Varela, 2016 NY Slip Op 51697[U][App Term, 1st Dept 2016], citing Cutler v North Shore Towers Assoc., 125 AD2d 532 [1st Dept 1986]), and/or the lower court should have, at the very least, have considered tenant's evidence, which showed that he had in fact cured any alleged aggravated conditions, which were caused by landlord's actions, prior to the hearing. Such statute, which provides for the automatic granting of "a ten day stay of issuance of the warrant, during which time the respondent may correct such breach" was enacted to "permit tenants to remain in possession by curing [a] violation after the rights of the parties have been adjudicated" (Post v 120 E. End Ave. Corp., 62 NY2d 19, 27 [1984]. Significantly, "RPAPL 753 (4) is procedural and remedial in nature and ... [is to] be liberally construed to spread its beneficial effects as widely as possible" (id.; see also Lincoln Terrace Assoc. v Snow, 1983 NY Misc LEXIS 4233 [App Term, 1st Dept 1983]["[RPAPL 753 (4)], remedial in nature, should be broadly applied wherever possible to avoid needless and unwarranted forfeitures of dwelling spaces"]). Indeed, RPAPL 753 (4) has been applied where, as here, there has been a nuisance adjudication based on excessive clutter (see 4G Realty v Vitulli, 2 Misc 3d 29 [App Term, 2d Dept 2003]).

An opportunity to cure is particularly warranted in this case, given tenant's age (65 years old), his long-term (38 year) rent stabilized tenancy, the de minimus nature of the alleged breach, his efforts at mitigating any alleged condition prior to the hearing, and the undisputed need for and prior involvement of Adult Protective Services (APS)[8] (see Trump Village Section 3, Inc. v Birnbaum, 2002 NY Slip Op 50646[U][App Term, 2d and 11th Jud Dist][where tenant failed to timely comply with the terms of settlement by curing cluttered condition, execution of warrant was permanently stayed since proof established that tenant cured the cluttered condition, prior to entry of the final judgment]. The evidence produced at the hearing falls short of establishing a breach of the stipulation sufficient to warrant a forfeiture of this 35 year rent stabilized tenancy. "It is a well-settled principle of equity that courts do not look favorably upon the forfeiture of leases" (2246 Holding Corp. v. Nolasco, 52 AD3d 377 [1st Dept 2008][citations omitted]; see also Dino Realty Corp. v. Khan, 46 Misc 3d 71 [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2014][stating that "the law abhors forfeiture of leases" and that "it is the policy of New York State to prevent unnecessary evictions, particularly of rent-stabilized tenants" [internal citations omitted]).

Accordingly, I would reverse, or, at minimum, remand for consideration of whether landlord caused the alleged breach by depriving tenant of the basement storage space and/or by landlord's construction causing dust and flooding of tenant's apartment[9], and whether tenant cured any alleged condition, prior to the hearing, and/or, nevertheless, qualified for a stay, pursuant to RPAPL 753(4)."

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